U.S. v. GOCHIS

United States District Court, Northern District of Illinois, Eastern Division

November 1, 2001

UNITED STATES OF AMERICA PLAINTIFF-APPELLEE,V.MICHAEL J. GOCHIS, DEFENDANT-APPELLANT.

The opinion of the court was delivered by: Gettleman, District Judge.

MEMORANDUM OPINION AND ORDER

Defendant Michael Gochis, a former union steward at Air
Express International ("AEI"), was charged, tried by a jury
before a magistrate judge, and convicted of three misdemeanor
counts of threatening and using violence against a fellow union
member for the purpose of interfering with and preventing the
exercise of the victim's rights under the labor laws, in
violation of 29 U.S.C. § 530. Defendant and the government
appealed. This court vacated defendant's conviction, holding
that the magistrate judge had no authority to enter a final
judgment of conviction because defendant had not been properly
advised of his rights when consenting to trial before the
magistrate judge rather than an Article III district judge.
See, United States v. Gochis, 196 F.R.D. 519 (N.D.Ill. 2000).
The court of appeals reversed that holding because it found the
magistrate judge's error to be harmless, and remanded the case
for this court to address the other issues raised in defendant's
appeal and in the government's cross-appeal. See, United States
v. Gochis, 256 F.3d 739 (7th Cir. 2001). For the reasons
discussed below, the court affirms the judgment of conviction,
but remands the case to the magistrate judge for resentencing.

FACTS

Defendant and his fellow employees worked at AEI's warehouse
in Bensonville, Illinois, and were members of the International
Brotherhood of Teamsters, Local 405. During April and May 1995,
the Union was in negotiations with AEI for a new contract, and
union members were debating whether to accept the contract terms
offered by the employer. Defendant was in favor of accepting the
terms and avoiding a strike, while other members, including
David Bothum ("Bothum"), were in favor of rejecting the offer
even if it meant a strike.

Emotions were running high among the employees, leading to the
incidents in question. The first two incidents, which involved
verbal threats by defendant to Bothum, took place at meetings of
union members at the warehouse. Although, to be sure, there is
conflicting evidence as to the precise words spoken by defendant
at that meeting, it is quite clear that defendant felt very
strongly that the membership should vote in favor of the
contract, Bothum felt to the contrary, and both men expressed
their feelings in no uncertain terms. According to the
government witnesses, Gochis threatened Bothum, telling him
"I'll kick your ass," or words to that effect. In the third
incident, according to certain government witnesses, defendant
encountered Bothum on the warehouse floor outside the context of
a meeting of the members, threatened him again and pushed Bothum
down to the floor, causing Bothum to sustain a rib fracture and
lumbar strain. Bothum had recently returned to work after
recuperating from a serious back injury.

Defendant asserts that the magistrate judge erred in refusing
to allow the introduction of evidence of a domestic dispute in
which Bothum allegedly slapped his wife approximately eight
months prior to the events in question in the instant case but
after Bothum's back surgery.*fn3 According to defendant, this
evidence should have been considered Brady*fn4 material
because it would have drawn into question Bothum's testimony
that he would not have confronted or provoked defendant because
he lacked physical ability to move about or defend himself in
return.

Defendant's logical and legal reasoning are lacking with
respect to this issue. First, as the government points out,
because defendant was not convicted of this charge and because
Bothum's testimony regarding it would not be probative of
Bothum's truthfulness, it could not be used as a basis for
impeachment under Federal Rule of Evidence 608(b). Varhol v.
National R. Passenger Corp., 909 F.2d 1557, 1567 (7th Cir.
1990). Second, the obvious prejudice toward Bothum that would
likely be caused by such testimony clearly outweighs whatever
probative value the it has, making it prime for exclusion under
Federal Rule of Evidence 403.*fn5 Finally, testimony about
Bothum's alleged
domestic abuse obviously was brought to the attention of
defendant prior to trial, and thus Brady does not appear to be
applicable at all.

For the foregoing reasons, the court affirms the jury verdict
of guilty and the judgment of conviction entered thereon.

Defendant's Sentence

The sentence imposed by the magistrate judge poses a more
difficult problem. The Presentence Report ("PSR") prepared by
the probation office calculated defendant's offense level under
the United States Sentencing Guidelines at a total of 27,*fn7
and his criminal history level at I, resulting in a guideline
range of 70 to 87 months of incarceration and a fine range of
$1,250 to $125,000. Under U.S.S.G. § 5G1.2(d), when the
statutory maximum is less than the guideline sentencing
range,*fn8 and the defendant is convicted of multiple counts,
the court is required to impose a consecutive sentence for each
count to the extent necessary to produce a combined sentence
equal to the total amount of incarceration otherwise required by
the Guidelines. Thus, the government argues, as it did below,
that the magistrate judge in the instant case was required to
impose a one year sentence on each of the three counts of
conviction (the maximum allowed under the statute), to run
consecutively for a total of three years.

Based on all of the above, it is clear that, rather than being
under the impression that he lacked authority to depart further
downward, as defendant asserts, the magistrate judge was merely
voicing his frustration at not being able to find grounds that
would support a further departure than that which he had already
made. Thus, the court denies defendant's asserted basis for a
resentencing remand.

This is not the end of the court's inquiry, however. As
explained above, the government has consistently argued that the
magistrate judge was required to impose the sentences on each of
the three counts to run consecutively, rather than concurrently
as he did. The government is correct, and the court must remand
for resentencing on this basis.*fn10 See U.S.S.G. §
5G1.2(d). The court further urges the magistrate judge at
resentencing to more clearly explain his consideration of the
"structure and theory of both relevant individual guidelines and
the Guidelines taken as a whole," to decide whether this case
presented sufficient facts to take the case out of the
"heartland," bearing in mind the sentencing commission's
"expectation that departures based on grounds not mentioned in
the Guidelines will be highly infrequent." See United States v.
Raimondi, 159 F.3d 1095, 1101, n. 16 (7th Cir. 1998).

CONCLUSION

For the reasons stated above, the jury verdict of guilty and
the judgment of conviction is affirmed, but the sentence imposed
by the magistrate judge is reversed and remanded for
resentencing consistent with this opinion.

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